' SH. RIAZ AHMED, J.---Petitioner Fazalur Rehman "alias Peshay Khan seeks leave to appeal against the judgment and order, dated 8-12-1997 whereby appeal preferred by him calling in question the death sentence awarded to him was confirmed and the reference sent against the petitioner under section 374, Cr.P.C. Was answered in affirmative.
2. The facts in brief giving rise to the institution of this petition are that F.I.R. No,13 of 1984 dated 12-1- 1984 was registered at Police Station Badami Bagh, Lahore under section 302/307/148/149, P.P.C.
Against the petitioner and 4 others in respect of murder of Muhammad Arif and for causing murderous assault upon Muhammad Latif, Yar Muhammad and complainant Muhammad Siddique. After the occurrence the petitioner and Muhammad Yousuf absconded and were declared proclaimed offender whereas remaining 3 accused, namely, Ghulam Nabi Haroon and Abdur Rehman were tried by an additional Sessions Judge at Lahore. As a result Ghulam Nabi was acquitted while Haroon was convicted under section 307/34, P.P.C. And was sentenced to undergo life imprisonment and to pay a fine of Rs,10,000 or in default thereof to suffer S.I. For two years.
Abdur Rehman alias Mana was also convicted under section 307/34, P.P.C., but he was sentenced to undergo S.I., for a term of 10 years and to pay fine of Rs,10,000 or in default thereof to suffer further S.I. For six months. Aggrieved by the acquittal of Ghulam Nabi, the State filed an appeal while convicts Haroon and Abdur Rehman also filed appeal to assail their conviction. The State appeal was dismissed and the appeal filed by the convicts was allowed. The complainant aggrieved by the said order assailed the same through filing a petition for leave to appeal in this Court, but the same was dismissed vide judgment and order dated 26-11-1995 in respect of Abdur Rehman, but in respect of Haroon the appeal was allowed and instead of life imprisonment he was awarded 7 years R.I. And to pay a fine of Rs,10,000 by this Court.
3. Adverting to the case of the petitioner he was arrested on 27-10-1986 and was sent up to face trial before an Additional Sessions at Lahore. Vide judgment, dated 6-3-1989 he was found guilty on the charge under section 302, P.P.C. And was sentenced to death and to pay a fine of Rs,10,000 or in default thereof to suffer R.I. For a term of one year. The petitioner was also found guilty on the charge under section 307, P.P.C. And was sentenced to undergo R.I. For a term of 4 years and to pay a fine of Rs,5,000 or in default thereof to suffer R.I. For a term of 6 months. The learned trial Judge also directed that in the event of recovery of fine the same shall be paid to the heirs of deceased Arif as compensation as stated above. The petitioner assailed his conviction by way of filing an appeal, which stands dismissed vide orders impugned and vide the same order the reference made under section 374, Cr.P.C. Was also answered in affirmative.
4. The prosecution case as narrated by the complainant Muhammad Siddique in the F.I.R. Was that on 12-1-1984 at Zohr Wela, the complainant alongwith deceased Arif, Muhammad Latif P.W.1 and Yar Muhammad P.W.9 was stitting at the Dera of the deceased when petitioner accompanied by Ghulam Nabi, Haroon, Abdur Rehman having formed themselves into unlawful assembly, armed with pistols while Yousaf armed with a carbine reached the Dera in a blue car. On reaching the Dera, the petitioner raised Lalkara to the effect that they had come to avenge their defeat in the election. The deceased Arif went forward to catch hold of the petitioner, but he fired at him hitting his temple as a result of which Arif fell down. Then a second fire was shot hitting the deceased at his abdomen. Ghulam Nabi also fired hitting the deceased on his left buttock. Muhammad Latif and Yar Muhammad injured witnesses tried to lift Arif, but were fired upon by Haroon hitting Latif at his abdomen. Yousuf then fired at Yar Muhammad P.W. And the pellet landed on his abdomen. The complainant tried to hit the petitioner with a brick, but he was also fired upon by Abdur Rehman.
The complainant then ran for his life and in the meanwhile P.Ws. Farzand Ali, Ghulam Murtaza and other were attracted but all the accused escaped from the scene of occurrence. It was further stated by the complainant in the F.I.R. That while leaving the scene of occurrence the accused broke the door of Masood Shah Councilor. The deceased succumbed to the injuries at the spot while Muhammad Latif and Yar Muhammad P.Ws. Were taken to the hospital. The motive for the commission of the crime was that at the last election the complainant party had helped Masood Shah while the petitioner and his group was supporting Abdul Hameed and others. It was stated that on account of the said grouse, the petitioner and his associate had attacked the complainant side.
5. The medical examination of the deceased revealed that he had received one lacerated wound oval in shape measuring 1.5 x 1 c.m. On the right temple region and the blackening was present. The exit wound was found on the left parietal region of the skull above the left ear. Another entry circular wound measuring 1 x 1 c.m. Was found on the left ilia fossa.Lts exit wound was located on the left buttock. In the opinion of the doctor, injuries Nos.1 and 3 were individually and collective sufficient to cause death in the ordinary course of nature.
6. To prove its case against the petitioner, the prosecution placed reliance upon the ocular testimony furnished by Muhammad Latif, Muhammad Siddique, complainant and Yar Muhammad injured witness.
7. With the assistance of the learned counsel for the petitioner and the State, we have carefully gone through the ocular testimony furnished by these witnesses. We have noticed that their version is consistent and they corroborate each other on all material aspects of the prosecution case. Masood Shah councilor, who had won the election as against Abdul Hameed, who was supported by the petitioner and his group also appeared and deposed about the motive. He corroborated the complainant by stating that the petitioner was supporting him, but he had won the election and on that account the petitioner and his party bore and had conveyed threats that they will take revenge of the defeat.
8. When examined, under section 342, Cr.P.C. The petitioner denied the prosecution story and attributed false implication on account of enmity. According to the petitioner deceased Arif and other P. Ws. Were notorious murderers and dacoits and were involved in a number of cases.
According to the petitioner, the deceased had some dispute over money with Shah Muhammad alias Shahani and on the day of occurrence said Shah Muhammad alongwith Muhammad Yousuf visited the Dera of Arif deceased and on account of the dispute, hot words were exchanged and Shahani took out his pistol killed Arif on the spot and injured Muhammad Latif and Yar Muhammad.
9. The learned counsel for the petitioner mainly relied upon the observations made by this Court while disposing of Cr.A. No,217 of 1992 and it was urged before us that this Court has disbelieved the prosecution story and according to the judgment of this Court the accused party had not come to the spot to murder Arif deceased, and therefore, the element of mens rea was missing, and thus, conviction under section 302, P.P.C. Was unsustainable. It was further argued that it is an old occurrence and the petitioner has undergone the agony of protracted trial and was in death cell since the date of his conviction, i,e, 6-3-1989 and, therefore, it was not a case in which the death penalty should be imposed upon the petitioner. We were taken through the judgment delivered by this Court while disposing of Cr.A. No,217 of 1992. In fact this Court had observed that the element prosecuting common object by an unlawful assembly was missing and therefore, each of the accused was liable for his own act. The relevant portion of the judgment delivered by this Court is as follows:- "We have tried to appraise the evidence, which had come on record through eye-witnesses Muhammad Siddique P.W.8, Muhammad Latif P.W.10 and Yar Muhammad P.W.9. The very perusal of the F.I.R. Exh.P.A. Shows that the five assailants had not come with a predetermined mind to kill Muhammad Arif or any of the witnesses. Prosecution case in the F.I.R. Shows that Muhammad Arif was fired at because he made an effort to catch hold of Fazalur iZehman. The ocular evidence is also to that effect. In the circumstances, there is no scope for application of either section 34 of P.P.C. Or section 149, of P.P.C. Consequently every accused is liable for his own act."
'10. It is abundantly clear from the perusal of the above-referred portion of the judgment delivered by this Court that this Court had not held that the element of mens rea was missing. To the contrary, this Court treated it as a case of individual liability because the element of common object jar common intention was missing. It is further pertinent to mention that this Court in fact believed the prosecution case and held the eye-witnesses as truthful witnesses. In the light of these facts, it is obvious that the petitioner armed with a pistol had reached the scene of occurrence and had fired two fatal shots on the deceased, one on the temporal region and the other at the abdomen. The nature of injuries proved that it was a close range shot and that it was fired with the intention to murder Arif deceased and it was followed by second shot fire by the petitioner, which too landed on the vital part of the body of the deceased which was individually and collectively sufficient to cause death in the ordinary course of nature. The eye-witnesses bear stamp of injuries and their presence on the scene of occurrence cannot be doubted. The perusal of their statements and cross-examination shows that their version ring true and despite searching cross-examination the defence failed to elect anything on the record to show that they were not present and had not seen the occurrence. The prosecution case also stand corroborated by the statement of councilor Masood Shah, who gave the background of enmity over elections between the complainant and the accused side, therefore, the motive and the medical evidence corroborate the ocular testimony. In addition thereto, the abs condense of the petitioner goes a long way to prove his guilt as held in the judgments of this Court reported as Gull Hasan v. The The State (PLD 1969 SC 89). Muhammad Bashir v. The State (1970 SCMR 354) Muhammad Tariq Rafiq v.
The State (PLJ 1974 SC 221) and Aminullah v. The State (PLD 1976 SC 629).
11. In the view of the matter, we are of the view that the conviction of the petitioner on the record of the case is justified and no case for interference is made out by this Court. Hence this petition is dismissed and leave to appeal is refused.